Van Eppes v. Smith

LIGON, J. — The motion to dismiss the writ of certiorari, because the reasons set forth in the petition for it were not sufficient to authorize its issue, was correctly overruled by the court below. The statute which allows appeals and writs of certiorari to judgments rendered by justices of the peace, declares, that when such cases reach the appellate court, they shall be tried de novo on their merits, upon issues made up under the direction of the court, thus indirectly forbidding their dismissal for any irregularities in the manner of bringing them before that court. On the trial, it appears by the bill of exceptions, the court charged the jury, “that a person may have several agents, with full powers to do the same act, and if the plaintiff had ground sufficient to satisfy an ordinarily reasonable man of the agency of Stall, and that lie had performed the work and delivered it, before he was informed to the contrary, it would be sufficient to charge the defendant.” This, as a proposition of law, cannot be supported. The inferences of a party dealing with one whom he supposes to be the agent of another, deduced alone from the acts of such supposed agent, are no proof of agency, and the jury should not be told to look to them as such. In Scarborough v. Reynolds, 12 Ala. 253, it [320] is held, “that the agency of a party must first be proved by other evidence than his acts, before it can be assumed that his acts are binding on the principal.” Some act of the principal, in relation to the thing done, is indispensable to mate out the agency, and the pretensions and acts of the party assuming to be the agent have no foundation upon which to rest, until the principal is thus connected with them. , The text books lay it down as a rule in such cases, and this /court has repeatedly reiterated it, that, when a person deals / with one who professes to be the agent of another, the per-l son contracting with him is bound to know the extent of his '.authority. Paley on Agency, 309; Fisher v. Johnson & Campbell, 9 Por. 210; Gullett v. Lewis, 3 Stew. 23. But the last part of the charge in this case assumes the law to be, that if a party deal with one whom he reasonably supposes to be the agent of another, the contract is binding on the latter, unless he informs the dealer before the contract is completed that the professed or supposed agency does not exist. This is manifestly erroneous, and based upon a misconception of the law; for under it the burden of proof is thrown on the defendant, and he is required to prove the want of authority of him who unauthorizedly intermeddles in his business; when by the rules of law, it is on the plaintiff to show the fact of agency. In the brief of the counsel for the plaintiff in error, our attention is called to the fact shown by the record, that the parties before the justice of the peace, and those to the issue in the City Court, are not the same, and it is insisted that the case should be reversed for this error also. We decline pronouncing an opinion on this part of the case, because no point appears to have been made on it in the court below, or in the assignment of errors in this court, and we will not consider errors unless they are assigned and insisted upon. For the error shown above, let the judgment be reversed and the cause remanded.